Christina Melady, associated with individual TAJ tax a society of lawyers, Deloitte Touche Tohmatsu member is on the tax of the "package management" issues, and the use of the EAP.
What instruments the manager can subscribe
It may invest particularly in shares, warrants (BSA) shares or convertible bonds (OC, CPEC). Only the first two are eligible for savings shares (PEA) plan and tax treatment of capital gain. Today, the BSA is extremely widespread. It allows to acquire, at a given price, fixed a number of actions under conditions. The choice of these instruments varies depending on the selected schema.
The "pari passu" mechanism is based on a proportional investment of the Fund and the leader. Traditionally used for the "ring 2", it assumes a disbursement of cash important on the part of manager. The "sweet equity" mechanism, it is based on an asymmetric investment between the Fund and the leader. Essentially structured as BSA, it requires a lower starting last. These two patterns (pari passu and sweet equity) are often the Agency of the "circle 1", which brings together the key men of the target company. Enlargement to a large number of employees, combined in the "circle 3", through the distribution of stock-options and free shares. It allows to avoid the public appeal procedure applicable savings since more than a hundred people are shareholders while strengthening the fiscal and social packages security.
What are the risks of fiscal requalification
The administration passes through three criteria, to determine if the implementation of the leader is based on a true risk taking. The price of the instrument should reflect a market value, the date of the investment manager must be similar to that of the Fund, the duration of the investment should not be too short. In theory, the gains made by the manager are subject to the tax on capital gains, or 27. In practice, the tax administration can recharacterize them salary-BNC (40) or distribution (51-35 after deductions). For requalification in salary, social security contributions will rise to 26 for the company and about 9 for the employee on déplafonné. In addition, the leader may be sentenced to the payment of interest and delay penalties. These ranging from 10 in the event of failure to 80 for fraud and abuse of law, by 40 in the case of bad faith.
Is EAP a suitable vehicle
Of course. If its rules are met, this plan gives right to taxation on capital gains reduced 11, instead of 27. Two major securities eligible are the action and the BSA. To avoid a penalty for breach of law, it must reflect a market value. Today, its value easily determines with econometric models of type Black & Scholes. The exit which often takes a different form for the Fund and the manager , value may be regarded as a distribution, when the company buys back its own shares to the manager or carries out a liquidation. Here the problem of the ceiling of the PEA, which is limited to 10 of the initial investment. Of course, there are abuses. Some PEA reached several tens of millions of euros, because the leader réinvestissait completeness of its capital gains! We must remain faithful to the philosophy of the PEA: it is an account used to wear a real investment and not a disguised remuneration.